The Volokh Conspiracy
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Rudy Giuliani's Motion to Dismiss Election Workers' Libel Lawsuit Denied
From Freeman v. Giuliani, decided today by Chief Judge Beryl Howell (D.D.C.); the court concluded that the facts as alleged by plaintiffs would, if proved, suffice to authorize liability—naturally, there's still question whether plaintiffs will introduce enough evidence to defeat an eventual motion for summary judgment, and whether they will eventually persuade a jury (or whether the case will settle in light of that possibility):
After the polls closed across the country on November 3, 2020—the first Presidential election in U.S. history to be conducted in the midst of a deadly global pandemic—the results in some states were immediately called, with either former Vice President Biden or then-President Trump declared the obvious winner. In other states, including Georgia, the margins of victory were substantially closer, and voters and candidates went to bed that night not knowing who had won. As days passed, local and state election officials diligently conducted the counting of absentee ballots and manual recounts, but the void of clear results became filled with increasingly outlandish paranoia from those claiming the election was being "stolen."
Defendant Rudolph Giuliani—a current media personality and former politician once dubbed "America's mayor"—propagated and pushed that false narrative. Caught in the crossfire of Giuliani's campaign to undermine the legitimacy of the 2020 election were plaintiffs Ruby Freeman and Wandrea ArShaye ("Shaye") Moss (collectively, "plaintiffs"). Freeman was a temporary election worker with the Fulton County Registration and Elections Department in Fulton County, Georgia during the 2020 general election, while Moss worked on Fulton County's absentee ballot operation. After Giuliani made a litany of statements and accusations against plaintiffs concerning their activities as election workers, Freeman and Moss initiated the instant lawsuit in December 2021, against Giuliani, and others, for[, among other things,] defamation ….
Giuliani's alleged statements accuse plaintiffs of criminal activity—which can be proven to be true or false in court—and, consequently, he cannot seek refuge under the opinion doctrine …. Even if Giuliani made clear that his statements were his own subjective views, those statements still included accusations of election fraud that can be verified as true or false. See, e.g., Am. Compl. ¶ 60 ("Ruby Freeman is seen surreptitiously & illegally handing off hard-drives"); ¶ 66 ("There's a video recording in Fulton County, Georgia, of what is obviously, without any doubt, the theft of votes…. [O]bservers are being thrown out of the room. A phony excuse of a water main break was used."); ¶ 69 ("Ruby Freeman and her crew getting everybody out of the center, creating a false story that there was a— that there was a water main break"); ¶ 72 ("[T]hey got rid of the public, and they started triple counting ballots[.]"); ¶ 91 ("Now you take the two women who ran that, there are other tapes of them earlier in the day, handing off—handing off small, hard drives and flash drives, those flash drives were used to put in the machines[.]"); ¶ 99 ("Then they opened up this big blanket and under all the whole, all these ballots and then with no one observing in violation of the law they very seriously tried to count all these votes."). The fact that Giuliani directs listeners to view the Edited Video for themselves is beside the point. If Giuliani falsely characterized plaintiffs' actions in the Edited Video, his statements are still actionable because they imply verifiably false facts….
Although whether Freeman is a private figure or a limited-purpose public figure is a relevant issue, Freeman has done all she must to do at this stage: allege that she is a private figure. The pleading burden on plaintiffs would be too onerous if they were required not only to anticipate whether a defendant would raise a limited-public-figure defense, but, on top of that, also to find and elicit facts before discovery that shed light on the defendant's state of mind to prove actual malice. For these reasons, a plaintiff does not have an "obligation to anticipate in its complaint the need to plead facts to defend against defendants' assertions that [she] is a public figure." …
Even assuming that Freeman were required affirmatively to plead she was not a limited-purpose public figure, and assuming, arguendo, that Freeman was a limited-purpose public figure (an issue this Court does not decide), Giuliani must still then show that Freeman did not plead sufficient facts to show he made statements regarding her purported criminal history with actual malice. Freeman has sufficiently pled those facts, so Giuliani's argument goes nowhere….
Freeman's actual-malice argument is as follows. First, the Strategic Plan expressly concedes that whether Freeman was arrested for voter or election fraud needed to be confirmed. Strategic Plan at 21 (emphasis added) ("Ruby Freeman (woman in purple shirt on video), now under arrest and providing evidence against GA SOS Stacey Abrams and DNC on advanced coordinated effort to commit voter / election fraud [need confirmation of arrest and evidence]."). On top of this, Giuliani concedes that public reporting had shown that there was no truth to the allegation that Freeman "had been arrested/had a criminal record regarding voting fraud" before Giuliani made his statements regarding Freeman. Def.'s Mot. at 47 (discussing an article by Snopes.com reporting that Freeman was not arrested for committing crimes related to election fraud in Georgia); see also Dan Evon, Ruby Freeman Was Not Arrested by the FBI, Snopes.com (Dec. 18, 2020), https://www.snopes.com/fact-check/ruby-freeman-arrested-by-fbi/. Despite that lack of confirmation, on December 23, 2020—four days before when the plaintiffs allege the Strategic Plan was likely published—Giuliani publicly accused Freeman of having "a history of voter fraud participation." Am. Compl. ¶ 66. Plaintiffs also allege that Giuliani caused the publication of Trump's statement on January 2, 2021, when he called Freeman a "professional vote scammer" and "known scammer[.]" Id. ¶¶ 80–81.
Freeman has plausibly alleged Giuliani made statements about her criminal activity/history with actual malice. When taken together, these allegations at least plausibly suggest that Giuliani fabricated Freeman's arrest and criminal record out of whole cloth: Giuliani accused Freeman of election fraud before the Strategic Plan was allegedly published, even though the Strategic Plan (which Giuliani was at least plausibly an author) noted that the Trump Campaign still needed evidence that she was arrested for that very criminal activity. Cf. Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 284 (D.D.C. 2017) (denying defendants' motion to dismiss on actual malice grounds in a defamation case because plaintiffs alleged that defendants "failed to uncover a single reported piece of evidence corroborating [the sole source's] outlandish claims"). When viewing the Amended Complaint's factual allegations in the light most favorable to the plaintiffs, this evidence is enough to suggest that Giuliani recklessly accused Freeman of being arrested for election fraud.
For these reasons, plaintiffs have pled a plausible defamation claim under D.C. law….
